Citation Nr: 1300311 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 10-33 552 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to service connection for a left eye stye. 2. Entitlement to an initial compensable rating for bilateral heel spurs. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran served on active duty from October 1986 to May 2009. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah that granted service connection for bilateral heel spurs, evaluated as noncompensable, effective June 1, 2009; and a March 2010, rating decision in which the RO denied entitlement to service connection for a left eye stye. In an October 2011 e-mail, the Veteran wrote that he was satisfied with previous RO decisions and wanted to withdraw his appeals concerning the issues of increased ratings for a right shoulder disability, a traumatic brain injury, migraine headaches, bilateral carpal tunnel syndrome and entitlement to service connection for a left leg disability. Hence, there remain no allegations of errors of fact or law for appellate consideration. An appeal may be withdrawn in writing at any time or during the course of hearing on the record before the Board promulgates a decision. 38 C.F.R. § 20.202 (2012). Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204 (2012). Accordingly, the Board does not have jurisdiction to review these appeals and they are dismissed. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The Board notes that the Veteran was assigned a 100 percent disability rating from the day following his release from active duty. FINDINGS OF FACT 1. The Veteran has a chronic left eye stye that began in service. 2. The Veteran bilateral heel spurs result in a disability that is the equivalent of moderate bilateral flatfoot. CONCLUSIONS OF LAW 1. The criteria for service connection for a left eye stye disability are met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for an initial evaluation of 10 percent, for bilateral heel spurs have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Codes 5276, 5284 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The Veteran indicated in multiple statements, to include his VA Form 9, dated July 2010, that his appeal of the initial rating for bilateral heel spurs would be satisfied by a 10 percent rating. Although a claimant is presumed to be seeking the maximum benefit under law; he can choose to limit his appeal to a lesser benefit. AB v. Brown, 6 Vet. App. 35 (1993). As the Board is granting the Veteran's claim for an initial compensable rating for bilateral heel spurs as well as granting service connection for the Veteran's left eye stye, the claims are substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran was afforded a VA examination in December 2009. (VVA doc ID 16125593335). The Veteran reported that he began having styes about 10 years ago. They appear on either eyelid about every one and a half years; usually when he gets one, he gets a second one about the same time. Previously all were internal until the last two which he had to have removed. The styes are treated with hot compresses and creams. They had previously drained on their own. The examiner noted that the Veteran's service treatment records dated April 1992 indicate that the Veteran had right eye irritation with the lid being slightly puffy and a small chalazion under his lateral upper lid. The examiner indicated that the Veteran had a normal eye examination with a history of chalazion/hordeolum. On the Veteran's VA Form 9, dated February 2011, he contended that his left eye stye is chronic and not an acute disability. (VVA doc ID 23896859335). He also indicated that he continued to have problems with recurrent styes in his left eye. There are no other documents of record which indicate treatment for a left eye stye. The Board finds that the Veteran is competent to attest to the continuity of his left eye styes. Clearly, this is the type of disability which is diagnosable by lay observation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Veteran can, therefore, credibly ascertain the chronicity of such condition, which he has done. Thus, the Board finds that the Veteran is entitled to service connection for a left eye stye. Initial Rating Disability evaluations are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The Veteran's service-connected bilateral heel spurs are currently evaluated as zero percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5299-5276, reflecting evaluation based on criteria for an analogous condition of acquired flatfoot. Under 38 C.F.R. § 4.71a, Diagnostic Code 5276, acquired flatfoot; a noncompensable rating is assigned when symptoms are mild and relieved by a built-up shoe or arch support. 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2012). A 10 percent rating contemplates moderate flatfoot with weight-bearing over or medial to the great toe, inward bowing of the tendo achillis, and pain on manipulation and use of the feet. A 10 percent rating is assigned whether the disability is bilateral or unilateral. A 30 percent disability rating is warranted if the bilateral disorder is severe with objective evidence of marked deformity, pain on manipulation and use accentuated, indications of swelling on use, and characteristic callosities. A maximum 50 percent disability rating is warranted if the disorder is pronounced with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, Diagnostic Code 5276. Under Diagnostic Code 5284, moderate residuals of foot injuries warrant a 10 percent evaluation. A 20 percent rating requires moderately severe residuals. Severe residuals of foot injuries warrant a 30 percent evaluation. 38 C.F.R. § 4.71a. In evaluating disabilities rated on the basis of limitation of motion, additional rating factors include functional loss due to pain supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Inquiry must also be made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, including pain on movement. 38 C.F.R. § 4.45. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board has reviewed all the evidence in the Veteran's claims file, which includes: his contentions, service medical records, and post service medical records. The Veteran was afforded a general VA medical examination in January 2009. The Veteran reported that he had pain in both heels with weight bearing. He has been prescribed inserts to wear with his work boots. He noted mild residual pain with prolonged standing more than 20 minutes. Examination of both feet revealed normal appearance without heat, redness, swelling, or tenderness. He was able to walk on his heels and his toes and squat without apparent discomfort. No additional limitations were noted with three repetitions of movement during the physical exam as related to pain, fatigue, incoordination, weakness, or lack of endurance. The Veteran was afforded an additional VA examination in June 2011. The Board notes that the claims file was not reviewed in the context of this examination; however, the examination was only for assessment of the Veteran's current disability without regard to historical information which would have been provided in the claims file. The Veteran reported pain with weight bearing, 2/10 on standing and 7/10 on walking. He complained of stiffness, swelling, heat, fatigability, lack of endurance with prolonged walking and standing. The Veteran reported that he wore inserts in both shoes. The Veteran had no tenderness on palpitation; there was no objective evidence of painful motion, edema, instability, weakness or tenderness bilaterally. He had a normal gait. There were no callosities; no skin or vascular changes; no deformities; no valgus deformity; no forefoot or mid foot malalignment; and there was active motion of the metatarsal phalangeal joint of the great toes. With bilateral x-rays, there were small calcaneal spurs with no significant arthritis changes. VA treatment records associated with the claims file do not report ongoing treatment for the Veteran's heel spurs. The evidence indicates that the Veteran's current disability warrants separate 10 percent disability ratings consistent with Diagnostic Code 5284 for moderate residuals of foot injuries. Diagnostic Code 5276 indicates that moderate flatfoot entails pain with weight-bearing over or medial to the great toe, inward bowing of the tendo achillis, and pain on manipulation and use of the feet. The Board notes in this regard that the Veteran complains of pain with use of the feet as well as stiffness, swelling, heat, fatigability and a lack of endurance with prolonged walking and standing. Thus, in this case, the Veteran's bilateral heel spurs warrant separate 10 percent ratings for pain with use as well as other symptomatology described by the Veteran, affording the Veteran the benefit of the doubt and utilizing symptomatology described within the ratings criteria for foot disabilities. This represents a full grant of the benefit sought by the Veteran. ORDER Entitlement to service connection for a left eye stye is granted. A s10 percent rating for bilateral heel spurs is granted, effective June 1, 2009. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs